Madhya Pradesh High Court
Mrs. Vibha Singh vs The State Of Madhya Pradesh on 10 May, 2022
Author: Anil Verma
1 MP No.4025/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 10th OF MAY, 2022
MISC. PETITION No. 4025 of 2021
Between:-
MRS. VIBHA SINGH W/O MR BASANT SINGH , AGED ABOUT 68
YEARS, OCCUPATION: AGRICULTURIST 707, KACHERI CHOCK
BAZAR NARVAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI Ajay Mishra Adv.)
AND
THE STATE OF MADHYA PRADESH THR. ADD. COMMISSIONER
1.
COMMISSIONER OFFICE UJJAIN (MADHYA PRADESH)
ADDITIONAL DISTRICT MAGISTRATE REVENUE COLLECTOR
2.
OFFICE UJJAIN (MADHYA PRADESH)
PATWARI HALKA VILLAGE NARWAL TEHSIL AND DISTRICT
3.
UJJAIN (MADHYA PRADESH)
MRS. KANAK BALI W/O MR. SHAILENDRA SINGH OCCUPATION:
4. SERVICE 707, KACHERI CHOCK BAZAR NARVAL (MADHYA
PRADESH)
.....RESPONDENTS
(Shri Ranjeet Sen, GA for respondents No.1 to 3)
(Ms. Mini Ravindran Adv. For respondent No.4)
This miscellaneous petition coming on for orders this day, the court
passed the following:
With the consent of counsel for the parties, matter is heard finally.
2 MP No.4025/2021
ORDER
1/ Petitioner has filed this petition under Article 227 of the
Constitution of India being aggrieved by the impugned order dated
21.10.2021 passed by the Addl. Commissioner, Ujjain in Case
No.783/Appeal/2020-21, whereby the petitioner's appeal under Section
44(2) of the M.P. Land Revenue Code, 1959 (in short "MPLRC") has
been dismissed and upheld the order dated 25.1.2021 passed by the SDO
(Revenue), Ujjain in Case No.0048/Appeal/2020-21. Petitioner has also
challenged the impugned order dated 25.1.2021 passed by the SDO
(Revenue), Ujjain in Case No.0048/Appeal/2020-21, whereby appeal has
been allowed and matter has been remanded back to the Addl. Tehsildar
(Revenue) with a direction that after hearing the parties and giving
sufficient opportunity as per the due procedure, matter should be
adjudicated afresh.
2/ The brief facts of the case are that petitioner has filed an
application under Section 109 & 110 of the MPLRC before the Naib
Tehsildar, Ujjain for mutation of her name in respect of the suit land
situated at village Narval. The same was decided on 2.11.2020.
Respondent No.4 challenged the same before the Naib Tehsildar, Ujjain
by filing objection and application under Order 1 Rule 10 of CPC, but the
same was allowed by the impugned order dated 25.1.2021, by which the
impugned order dated 2.11.2020 was quashed and matter was remanded
back to the Tehsildar. The petitioner challenged the said order before the
Addl. Commissioner, Ujjain, but the appeal was also dismissed. Being
aggrieved by the said order present petition is filed before this Court.
3/ Learned counsel for the petitioner contended that both the
revenue courts below have committed grave error of law and fact. Both
the courts below have failed to consider the fact that objection and the
application filed by respondent No.4 have already been rejected by the
lower court and said orders were not challenged by the respondent No.4,
in absence of which these orders attained finality. Learned appellate court
has not considered the fact that after the death of Shashi Kumari no
application or proceedings were initiated by the respondent No.4. At the
time of execution of the will Shashi Kumari was not medically fit. Hence
he prays that both the impugned orders be set aside.
4/ Per contra, learned counsel for the respondents opposed the
prayer made by the petitioner by submitting that respondent No.4 along
with Himawat Singh filed a civil suit before the 6 th Civil Judge Class-2,
Ujjain for declaration and injunction of the same property. It is further
submitted that revenue authorities have no jurisdiction to inquire about
the genuineness of the execution of the will and prays for rejection of the
petition.
5/ Both the parties heard at length and perused the documents
filed by the parties.
6/ From perusal of the record, it appears that respondent No.4
along with Himawat Singh has filed a Civil Suit bearing No.353-A/2021
on 4.9.2021 before the 6th Civil Judge Class-2, Ujjain which is still
pending. From perusal of the proceedings of the Court of Addl. Tehsildar,
Ujjain it appears that petitioner has filed objection regarding the
genuineness of the will. It is the settled law that genuineness of the will
can only be examined by the civil court of competent jurisdiction and
revenue courts have no authority to decide genuineness of the will. It is
also settled law that in case there is no objection regarding genuineness of
the will filed before the revenue authority, then on the basis of the
admitted will the mutation has to be done but once the objection is filed
for genuineness of the will, then the revenue authorities have no
jurisdiction to inquire the genuineness of the will.
7/ The Coordinate Bench of this Court in case of Kusum Bai
and others vs. Ummedi Bai passed in MP No. 23/21 decided on
16.2.2021 in similar circumstances has held as under:-
"From bare reading of the aforesaid section, it is seen that if a
question of title is raised by any of the parties and if there is a
dispute with respect to the documents on which on the basis of
which the title is being claimed then the revenue courts shall
stay the proceedings for a period of three months in order to
facilitate the parties for institution of a civil suit for
determining the question of title. The aforesaid section further
makes it clear that the revenue Courts under the M.P. Land
Revenue Code are not having any jurisdiction to decide the
disputes with respect to the title of the property in question."
8/ The coordinate Bench of this Court in the case of Smt.
Ramkali Vs. Banmali and another by order dated 17.2.2021 passed in
WP No.6695/2013 has held as under:-
"It is well established principle of law that the burden is on
the propounder of the "Will" to prove that the "Will" was
executed in his favour by the testator. Even if the "Will" is not
challenged by anybody, but still the propounder of the "Will"
has to discharge his burden and no decree can be passed even
by the Civil Court merely on the ground that the respondents
have chosen not to appear before it or have failed to file their
written statement as provided under Order 8 Rule 10 CPC.
Further, the similar view which was taken by this Court on
the earlier occasion has also been affirmed by the Division
Bench of this Court in the Writ Appeal in the case of Murari
(supra). Thus, it is clear that the revenue authorities have no
jurisdiction to decide the correctness and genuineness of a
"Will" and if the propounder of the "Will" wants to take
advantage of the "Will", then he has to get his title declared
from the Civil Court of competent jurisdiction."
9/ After considering the facts and circumstances of the case and
in view of the law laid down by the coordinate Bench of this Court in
respect of the determination of genuineness of the will, it is clear that the
revenue courts are not having any jurisdiction to determine the
genuineness of the will. Therefore, the impugned order dated 21.10.2021
passed by the Addl. Commissioner, Ujjain and the impugned order dated
25.1.2021 passed by the SDO (Revenue), Ujjain are unsustainable and are
hereby set aside. Both the parties are free to challenge the genuineness of
the will before the competent civil court in a pending civil suit and
establish their title on the basis of the will.
10/ In the interest of justice and to avoid complexity in the
matter, all the revenue authorities are directed not to proceed in this
matter in respect of the mutation proceedings and further follow the
orders and judgments passed by the competent civil court.
11/ The miscellaneous petition is accordingly disposed of.
C.C. as per rules.
(Anil Verma)
Judge
Trilok/-
Digitally signed by TRILOK SINGH SAVNER
Date: 2022.05.11 11:13:31 +05'30'
